July 28, 2000 Volume 6 -- Number 118 What follows is the case style or name, first paragraph, author's name, and the names of attorneys for the parties of each opinion released eletronically today to TBALink. This Issue (IN THIS ORDER):   00 New Opinion(s) from the Tennessee Supreme Court 04 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel 00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court 10 New Opinion(s) from the Tennessee Court of Appeals 02 New Opinion(s) from the Tennessee Court of Criminal Appeals 00 New Opinion(s) from the Tennessee Attorney General (PDF format) 00 New Judicial Ethics Opinion(s) 00 New Formal Ethics Opinion(s) from the Board of Professional Responsibility   There are three ways for TBALink members to get the full-text versions of these opinions from the Web: Do a key word search in the Search Link area of TBALink. This option will allow you to view and save a plain-text version of the opinion. Browse the Opinion List area of TBALink. This option will allow you to download the original version of the opinion. Click the URL at end of each Opinion paragraph below. This option will allow you to download the original document. Lucian T. Pera Editor-in-Chief, TBALink SAMUEL D. NUNLEY v. CARRIER CORPORATION JUDGMENT Court:TSC - Workers Comp Panel Judge: PER CURIAM First Paragraph: This case is before the Court upon the entire record, including the order of referral to the Special Workers' Compensation Appeals Panel, and the Panel's Memorandum Opinion setting forth its findings of fact and conclusions of law, which are incorporated herein by reference. http://www.tba.org/tba_files/TSC_WCP/nunleysam.wpd SHIRLEY B. RODGERS v. GUYS & GALS, INC., et al. JUDGMENT Court:TSC - Workers Comp Panel Judge: PER CURIAM First Paragraph: This case is before the Court upon the entire record, including the order of referral to the Special Workers' Compensation Appeals Panel, and the Panel's Memorandum Opinion setting forth its findings of fact and conclusions of law, which are incorporated herein by reference. http://www.tba.org/tba_files/TSC_WCP/rodgerssh.wpd DONNA THWEATT v. TRAVELERS PROPERTY & CASUALTY INSURANCE COMPANY JUDGMENT Court:TSC - Workers Comp Panel Judge: PER CURIAM First Paragraph: This case is before the Court upon the entire record, including the order of referral to the Special Workers' Compensation Appeals Panel, and the Panel's Memorandum Opinion setting forth its findings of fact and conclusions of law, which are incorporated herein by reference. http://www.tba.org/tba_files/TSC_WCP/thweatt.wpd MARY ZELEK v. FLAGSTAR SYSTEM, et al. JUDGMENT Court:TSC - Workers Comp Panel Judge: PER CURIAM First Paragraph: This case is before the Court upon the entire record, including the order of referral to the Special Workers' Compensation Appeals Panel, and the Panel's Memorandum Opinion setting forth its findings of fact and conclusions of law, which are incorporated herein by reference. http://www.tba.org/tba_files/TSC_WCP/zelekmary.wpd MARGARET ABBOTT v. ROBERTO GATEWAY, et al. Court:TCA Attorneys: Sean Antone Hunt, Nashville, Tennessee, for the appellants, Roberto Gateway, Emma Barton, and unnamed defendant/appellant, Nationwide Insurance Company. Larry H. Hagar, Nashville, Tennessee, for the appellee, Margaret Abbott. Judge: CAIN First Paragraph: The General Sessions Court of Davidson County awarded a judgment against the defendant below, Nationwide Insurance Company, in a case involving a car accident. Nationwide filed an appeal to the Davidson County Circuit court but failed to secure a trial date within 45 days as required by Davidson County Local Rule of Practice 20(b) (1999). The circuit court dismissed the case due to Nationwide's failure, and Nationwide filed a Tennessee Rule of Civil Procedure 60.02 motion to set aside the circuit court dismissal due to its attorney's excusable neglect. When the circuit court denied Rule 60.02 relief Nationwide appealed to this court. On appeal, we reverse the decision of the circuit court finding that it should have granted Nationwide's request for Rule 60.02 relief and set aside the dismissal of Nationwide's circuit court appeal. http://www.tba.org/tba_files/TCA/AbbottMargaret.wpd CLAUDIA HIBBETT BEECH v. PATRICIA HIBBETT Court:TCA Attorneys: James C. Hofstetter, Nashville, Tennessee, for the appellant, Patricia Hibbett. Robert L. Hudson, Nashville, Tennessee, for the appellee, Claudia Hibbett Beech. Judge: KOCH First Paragraph: This appeal involves a dispute over the proceeds from the Department of Transportation's condemnation of a portion of a tract of real property on Harding Road in Davidson County. When the condemnation took place, a life tenant was occupying the property with a vested remainder interest being held by the life tenant's stepdaughter. Following a disagreement over who should receive the condemnation proceeds, the life tenant's stepdaughter filed suit in the Chancery Court for Davidson County. After the State paid the proceeds into court, the trial court awarded the proceeds to the stepdaughter on the condition that she invest them and share the investment income equally with her stepmother for the duration of the life tenancy. The life tenant has appealed. We have determined that the trial court erred by awarding the condemnation proceeds to the life tenant's stepdaughter and, therefore, reverse the judgment. http://www.tba.org/tba_files/TCA/Beechch.wpd CHAD BLANKINSHIP v. TENNESSEE DEPARTMENT OF CORRECTION Court:TCA Attorneys: Chad Blankinship, Clifton, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter;Michael E. Moore, Solicitor General; and Stephanie R. Reevers, Senior Counsel, for the appellee, State of Tennessee. Judge: CANTRELL First Paragraph: A prisoner filed a petition to compel the Department of Correction to establish a mandatory parole date for his benefit. The trial court dismissed the petition for failure to state a claim upon which relief can be granted. We affirm the trial court. http://www.tba.org/tba_files/TCA/blankinshipc.wpd MARCINA CLARK v. NATHAN CROW Court:TCA Attorneys: John E. Herbison, Nashville, Tennessee, for the appellant, Nathan Crow. Jeffrey L. Levy, Nashville, Tennessee, for the appellee, Marcina Clark. Judge: CAIN First Paragraph: We grant this interlocutory appeal to consider a question of first impression regarding whether there is a right to jury trial prior to the issuance of an order of protection pursuant to Tennessee Code Annotated section 36-3-605, (hereinafter "order of protection"). Specifically, we are asked to determine whether a party against whom an order of protection is sought is entitled to a jury trial as a matter of right before this order is issued. After reviewing Tennessee's constitutional and statutory guarantees to a jury trial, we have determined that there is no right to a jury trial prior to the issuance of an order of protection. The circuit court's decision is affirmed and remanded for further proceedings. http://www.tba.org/tba_files/TCA/ClarkMarcina.wpd FAYE L. GREEN v. INNOVATIVE RECOVERY SERVICES, INC. Court:TCA Attorneys: Robert L. Whitaker, Nashville, Tennessee, for the appellant, Faye L. Green. Rhonda M. Whitted, Nashville, Tennessee, for the appellee, Innovative Recovery Services, Inc. Judge: CANTRELL First Paragraph: The attorney for a woman who had been injured in an auto accident claimed that his services entitled him to a portion of the subrogation interest asserted by TennCare against the settlement proceeds. The trial court dismissed his claim. We affirm the trial court. http://www.tba.org/tba_files/TCA/greenfl.wpd JOHNNY PHELPS v. TENNESSEE DEPARTMENT OF CORRECTION Court:TCA Attorneys: Johnny Phelps, Nashville, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, and Pamela S. Lorch, Assistant Attorney General, for the appellee, Tennessee Department of Correction. Judge: CAIN First Paragraph: Petitioner/Appellant, a state prisoner, filed his petition for common law certiorari asserting that he was being unconstitutionally and illegally incarcerated by the state and had not been given proper credits under various sentence reduction credit statutes and policies. The trial court granted summary judgment and Petitioner appealed. We affirm. http://www.tba.org/tba_files/TCA/PhelpsJohnny.wpd THOMAS RODGERS, v. TENNESSEE DEPARTMENT OF CORRECTIONS Court:TCA Attorneys: Thomas Rodgers, Nashville, pro se. Paul G. Summers, Attorney General and Reporter and Abigail Turner, Assistant Attorney General, for Respondent-Appellee, Tennessee Department of Corrections. Judge: FRANKS First Paragraph: In this Declaratory Judgment plaintiff sought statutory credits on his prison sentences. The Trial court granted the State summary judgment. On appeal, we affirm. http://www.tba.org/tba_files/TCA/Rodgerst.wpd IN RE: THE ADOPTION OF A MALE CHILD, DERRICK DOUGLAS DUNCAN, By RONALD EUGENE TAYLOR, ET UX v. LEO DUNCAN, JR. Court:TCA Attorneys: David Bass, Carthage, For Appellants James B. Dance, Carthage, For Appellee Judge: CRAWFORD First Paragraph: This appeal involves a petition by prospective adoptive parents for termination of parental rights, temporary guardianship, and for adoption of the minor child of the defendant father. In a non- jury trial, at the conclusion of petitioner's proof, the trial court found that they had failed to prove by clear and convincing evidence that the defendant father had abandoned the child and dismissed the petition. The prospective adoptive parents have appealed. http://www.tba.org/tba_files/TCA/taylorron.wpd VICKI DIANNE TUTTLE v. ROBERT EDWARD TUTTLE Court:TCA Attorneys: Robert E. Tuttle, Pro Se No appearance by appellee. Judge: CRAWFORD First Paragraph: In a previous appeal, this divorce case was remanded to the trial court for a determination of whether the parties had any marital property and, if so, for the trial court to make an equitable division thereof. From the trial court's final decree in compliance with the order of remand, defendant appeals. http://www.tba.org/tba_files/TCA/tuttlevic.wpd TERESA MILLER WITT v. WAYNE KEITH WITT Court:TCA Attorneys: John R. Reynolds and Thomas F. Bloom, Nashville, Tennessee, for the appellant, Wayne Keith Witt. Joanie L. Abernathy, Franklin, Tennessee, for the appellee, Teresa Miller Witt. Judge: CANTRELL First Paragraph: This is an appeal of the trial court's division of marital property in a divorce proceeding. Finding no error in the trial court's judgment, we affirm. http://www.tba.org/tba_files/TCA/witttm.wpd MICHAEL A. RHODES v. STATE OF TENNESSEE Court:TCCA Attorneys: Michael A. Rhodes, Whiteville, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; Clinton J. Morgan, Assistant Attorney General; and William C. Whitesell, Jr., District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: This is an appeal arising from the summary dismissal of a petition for post-conviction relief. The trial court's dismissal was based upon the failure to file the petition within the one-year statute of limitations. Upon review of the record, we reverse and remand for further proceedings since the petition was filed within one year of the date of the final action of the Tennessee Supreme Court in the direct appeal. http://www.tba.org/tba_files/TCCA/rhodesma.wpd STATE OF TENNESSEE v. DANIEL CHRISTIAN RUSSELL Court:TCCA Attorneys: Steve McEwen, Mountain City, Tennessee, Comer L. Donnell and Virginia M. Townzen, Lebanon, Tennessee, for the appellant, Daniel Christian Russell. Paul G. Summers, Attorney General and Reporter, and Marvin E. Clements, Jr., Assistant Attorney General, for the appellee, State of Tennessee. Judge: LAFFERTY First Paragraph: The appellant, Daniel Christian Russell, referred herein as "the defendant," appeals as of right from the judgment of the Wilson County Circuit Court imposing concurrent sentences for aggravated assault and vandalism. The trial court imposed sentences totaling five (5) years to be served concurrently in the Department of Correction. The defendant presents two appellate issues: 1) whether the length of the sentences imposed by the trial court are excessive; and 2) whether the trial court erred by denying the defendant's request for probation. Because the defendant received illegal concurrent sentences, we vacate the judgments of conviction and remand the case for further proceedings. http://www.tba.org/tba_files/TCCA/RussellDC.wpd PLEASE FORWARD THIS E-MAIL! Feel free to forward this Opinion Flash on to anyone you know of with an e-mail address. 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